Exhibit 10.53
Execution
Version
AMENDED AND RESTATED LETTER OF
CREDIT CASH
COLLATERAL
AGREEMENT
THIS AMENDED AND RESTATED LETTER
OF CREDIT CASH COLLATERAL AGREEMENT (this “ Agreement ”) is made
and entered into as of July 19, 2005 by and among
BEARINGPOINT, INC., a Delaware corporation (the “
Borrower ”), the Administrative Agent (defined below),
and each of BANK OF AMERICA, N.A., a national banking association
organized and existing under the laws of the United States (“
BOA ”), JPMORGAN CHASE BANK, N.A., a national banking
association organized and existing under the laws of the United
States (“ JPMCB ” and, together with BOA the
“ Issuing Banks ” and individually an “
Issuing Bank ”), and BOA as Depositary (the “
Depositary ”) of the LC Account (defined below). All
capitalized terms used but not otherwise defined herein shall have
the respective meanings assigned thereto in the Credit Agreement,
defined below, notwithstanding the occurrence of the Facility
Termination Date.
WITNESSETH:
WHEREAS, the Borrower, Bank of America, N.A. as
Administrative Agent (the “ Administrative Agent
”) and the Lenders party thereto from time to time entered
into a Credit Agreement dated as of December 17, 2004, as
amended by that certain Amendment No. 1 to Credit Agreement
dated as of March 17, 2005, as further amended by that certain
Amendment No. 2 to Credit Agreement dated as of March 24,
2005 (the “ Credit Agreement ”); and
WHEREAS, there are currently outstanding under the Credit
Agreement the Letters of Credit listed on Schedule I hereto,
having an aggregate undrawn Dollar Equivalent amount (as of the
last Revaluation Date) of $81,341,869.99 (the “ Letters of
Credit ”; the aggregate undrawn Dollar Equivalent amount
of the Letters of Credit from time to time is referred to as the
“ Aggregate Available Amount ”); and
WHEREAS, in connection with the termination of the
Aggregate Commitments and the occurrence of the Facility
Termination Date under the Credit Agreement, the Borrower, the
Administrative Agent, the Depositary and the Issuing Banks are
parties to that certain Letter of Credit Cash Collateral Agreement
dated as of April 26, 2005 (the “ Existing LC Cash
Collateral Agreement ”) pursuant to which the Issuing
Banks have required the Borrower to deliver immediately available
funds to the Administrative Agent for deposit into a non-interest
bearing cash collateral deposit account under the sole and
exclusive control of, and in the name of, the Administrative Agent
on behalf of itself and the Issuing Banks (the “ LC
Account ”; fully collected funds on deposit from time to
time in the LC Account are referred to as the “ LC Cash
Collateral ”), as collateral security for (i) the
payment of Letter of Credit Fees and certain other fees and charges
as herein provided, and (ii) the payment and satisfaction of
all other obligations and liabilities of the Borrower now owing or
hereafter arising in favor of the Administrative Agent or either of
the Issuing Banks in connection with the Letters of Credit or other
provisions of the Loan Documents that survive (or continue
notwithstanding the occurrence of) the Facility Termination Date;
and
WHEREAS, the Borrower, the Administrative Agent, the
Depositary and the Issuing Banks desire to amend and restate the
Existing LC Cash Collateral Agreement in its entirety on the terms
and conditions set forth herein;
NOW, THEREFORE,
in consideration of the foregoing
and the agreements, provisions and covenants contained herein, the
parties hereto agree as follows:
1. Amendment and
Restatement . The Borrower, the Administrative Agent and
the Issuing Banks hereby agree that upon the effectiveness of this
Agreement, the terms and provisions of the Existing LC Cash
Collateral Agreement shall be and hereby are amended and restated
in their entirety by the terms, conditions and provisions of this
Agreement, and the terms and provisions of the Existing LC Cash
Collateral Agreement, except as otherwise expressly provided
herein, shall be superseded by this Agreement.
2. LC Account; Cash
Collateralization of Letter of Credit .
(a) Account Creation and
Control. The Administrative Agent has established with the
Depositary, and the Depositary shall maintain until instructed to
the contrary by the Administrative Agent, the LC Account for the
benefit of the Administrative Agent and the Issuing Banks and under
the sole dominion and control of the Administrative Agent. The LC
Account shall be a non-interest bearing cash collateral deposit
account designated as BearingPoint, Inc. (Cash Collateral Account),
Account
No. .
Without limiting the foregoing, the parties hereto agree that the
Depositary will comply with all instructions originated by the
Administrative Agent directing the disposition of funds now or
hereafter in the LC Account without further consent of the Borrower
or any other Person, and that the Depositary will not honor any
instructions with respect to the LC Account other than those of the
Administrative Agent. The Borrower hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the
Lenders, a security interest in all such cash, deposit accounts and
all balances therein and all proceeds of the foregoing.
Payment into the LC Account
hereunder should be made to Bank of America, N.A. by a wire
transfer of immediately available funds directed as
follows:
|
|
|
|
|
|
|
|
|
Bank of America, N.A.
Concord, CA
ABA# 121000358
Account No.:
|
|
|
(b) Initial Deposit. As
of